The period after someone has passed is already an extremely difficult and emotional time for those involved. This is compounded by a lack of direction and understanding towards what actually is Probate.

what is probate?

A Grant of Probate (colloquially referred to as ‘’Probate’’) is essentially the court’s stamp of approval, that the Will provided is the last Will of the deceased. This by inference, allows executors named in the Will to act on behalf of the estate.

A Grant of Probate is only one variation of the Grants of Representation, that can be given by the court in a matter relating to a deceased. For example, where someone dies without a Will, a Grant of Administration can be obtained by certain parties.

what circumstances mean i have to get a grant of probate?

The factors which determine when a Grant of Probate is required, has its roots in some intricate legal principles. In modern times and with the rise of Estate Litigation, most third parties now require a Grant of Representation to interact with parties regarding a deceased person.

There are no fixed rules regarding when Probate is required. The process is largely driven by the people calculating risk at third party institutions. If you think about it, a bank doesn’t want to be held liable for releasing funds to someone that claims to have the authority to do so, only to find out that they shouldn’t have released the funds.

The best way to quickly determine when a Probate is needed, is to ask third parties what is required from you as an executor to interact with them. However, executors should always seek legal advice regarding what is appropriate in the circumstances, particularly where there is confusion about who has the authority to act for the estate.

what do i have to get a grant of probate?

The process for obtaining a Grant of Representation is legislated in each State. Effectively, it means that each State has its own rules about what is required to obtain a Grant of Probate.

Generally speaking, we see the following as common items required to apply for a grant of probate:

  1. correctly completed court forms;
  2. the original last Will (and usually a clean copy);
  3. the original death certificate (or a certified copy can suffice in some states);
  4. proof that the intention to apply for probate has been properly advertised (where required);
  5. a list of assets and liabilities of the deceased at the time of their death (where required);
  6. some form of acknowledgement by the executors that they are able to act (usually built into one of the court forms).

Again, specific advice should be obtained as to what is required in each case. Importantly, given that executors are personally liable to the beneficiaries, executors should ensure any steps they take are made with appropriate information and advice.

For those that want to know who else to notify when someone has passed, see our recent post on notifying third parties.

General Advice Disclaimer

Information provided on this website is general in nature and does not constitute financial or legal advice. Every effort has been made to ensure that the information provided is accurate, but information may become outdated as legislation and new government announcements are made. Individuals must not rely on this information to make a financial, investment or legal decision as it does not take into account their personal circumstance. Before making any decision, we recommend you consult a licensed adviser or legal practitioner to take into account your particular objectives, circumstances and individual needs.